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Official Opinion 97-21

Official Opinion 97-21

June 5, 1997

To:

Director Bureau of Investigation

Re:

A person may not be employed simultaneously with the Georgia Bureau of Investigation Division of Forensic Sciences and as a county deputy coroner.

This will respond to your request for an official opinion as to whether a person may simultaneously be employed by the Georgia Bureau of Investigation's Division of Forensic Sciences in its Crime Lab and as a county deputy coroner. It is my opinion that an individual may not be employed with the Crime Lab at the same time that he is a county deputy coroner.

Depending on the circumstances, the simultaneous holding of two or more public positions may be prohibited by constitutional separation of powers, statutory prohibitions, or by common law incompatibility. 1997 Op. Att'y Gen. U97-11; 1985 Op. Att'y Gen. 85-28. In the situation you have described, the separation of powers prohibition is inapplicable. Therefore, any prohibition against this dual service would derive from Georgia statutory authority or from common law incompatibility.

Georgia law provides that employees of the state may hold an appointive office of a political subdivision of the state provided that the office is not full time and does not conflict with the performance of the official duties of the person as a state employee. O.C.G.A. § 45-10-70; Ga. Comp. R. & Regs. r. 478-1-.03, par. 3.502(F)(1987). The purpose of Code Section 45- 10-70 and the accompanying State Personnel Board rule is to avoid situations in which the state employee's duties could become compromised by the duties imposed by the additional

employment. Thus, this opinion will focus on potential conflicts which might arise if a crime lab employee held the appointed position of county deputy coroner. A comparison of the statutory duties of the Georgia Bureau of Investigation and the duties of deputy coroners will illuminate any potential conflicts.

The Georgia Bureau of Investigation is vested with general powers and duties pursuant to O.C.G.A. § 35-3-4. That Code Section provides that the GBI is responsible for such duties as preventing, detecting, and investigating crimes; cooperating with all law enforcement agencies; scientifically investigating crime scene evidence; and exchanging information relating to crimes and criminals. See also O.C.G.A. §§ 35-2-32, -33 (defining the powers and duties of members of the Uniform Division of the Department of Public Safety). The GBI is also authorized to render assistance to other law enforcement agencies in their criminal investigations. O.C.G.A. §§ 35-3-8.1, -13.

The deputy coroner has the same powers as the coroner and is empowered to act as coroner when that officer is unable to act. O.C.G.A. § 45-16-7. Duties of the coroner which the deputy could assume under the Georgia Death Investigation Act include ordering a medical examiner's inquiry; taking charge of a dead body; ordering an inquest and impaneling a jury for that purpose; filing a death certificate; disposing of an unclaimed body; and disinterring a body. O.C.G.A. §§ 45-16-24, -25, -27, -36, -37, - 44, -45.

The GBI and county coroners work in conjunction to investigate suspicious or unusual deaths. See the Georgia Death Investigation Act, O.C.G.A. § 45-16-20 et seq. The GBI's Division of Forensic Sciences employs the State Medical Examiner who is responsible for establishing death investigation policies and guidelines for coroners and medical examiners. O.C.G.A. § 35-3-15. Should an allegation arise against a county coroner or a deputy coroner concerning the manner in which the coroner's office handled a death investigation, the GBI may ultimately be responsible for investigating those allegations. Such an investigation would likely consider whether the coroner's office followed the policies established by the State Medical Examiner's office. This type of investigation would potentially place the employee on both sides of the investigation: he could be an employee of the target of the investigation as well as an employee of the investigator. An impermissible conflict of interest could arise and possibly hinder the investigation.

Further, as I have previously opined,

"The common-law doctrine of incompatibility of offices arises out of the public policy that an officeholder's performance should not be influenced by divided loyalties. Dunn v. Froehlich, 382 A.2d 686 (N.J. 1978). Incompatibility exists where one office is subordinate to another, subject to its supervision or control, or the duties conflict, thus inviting the incumbent to prefer one obligation to another. Gryzik v. State, 380 So.2d 1102, 1104 (Fla. 1980)." Op. Att'y Gen. U83-55; see also, Op. Att'y Gen. U84-22.

1985 Op. Att'y Gen. 85-28, p. 68. "If the office holder in one capacity supervises or reviews the functions he has performed in his other capacity, common-law incompatibility exists." 1983 Op. Att'y Gen. U83-36, p. 261.

A conflict may also arise even though there is no "direct supervision or control" of one position over the other. 1984 Op. Att'y Gen. U84-22, p. 238. Instead, where there is even the potential for abuse arising from the holding of two such offices, there is an impermissible conflict of interest created. Id.; 1980 Op. Att'y Gen. 80-64.

There need not be any actual wrongdoing to create a conflict of interest, and none is suggested here. Common-law and statutory provisions are designed to preclude the opportunity or temptation for impropriety, by prohibiting the holding of incompatible positions. Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926).

In a limited sense, the county coroner offices are subject to the supervision of the Georgia Bureau of Investigation. As previously noted, the State Medical Examiner establishes death investigation policies for coroners. Further, the GBI Crime Lab performs autopsies and other scientific analyses to determine the cause and manner of death. Such testing is in

addition to any analysis done by the county coroner at the scene of death. At times, a coroner's report and a GBI report may not be consistent with one another. A difference of opinion in a case handled by the coroner's office in which the crime lab employee is the deputy coroner could "invite the employee to prefer one obligation to another." 1985 Op. Att'y Gen. 85-28; 1983 Op. Att'y Gen. U83-55. See also 1984 Op. Att'y Gen. U84-22.

Therefore, it is my official opinion that an individual may not be employed by the Georgia Bureau of Investigation Division of Forensic Sciences at the same time that he is a county deputy coroner.